Monday, October 27, 2008

Textual Child Pornography?

About a month ago, I did a post on textual obscenity, which is at least a conceptual possibility under U.S. law.

This post is about something different: textual child pornography . . . which I suspect is not a crime under U.S. law.

The question came up in the course of a conversation I had a couple of days ago with a reporter from Detroit. He said a prosecutor there – state or federal, I’m not sure which – is prosecuting pimps who apparently used Craiglist and other websites to prostitute children. I don’t know anything about the case, if such a case is in progress, but the reporter said something I found interesting.

He mentioned that a possible charge might be the distribution of child pornography. When I asked what such a charge would be based on, he said he thought it would be based on the pimps’ posting nude and/or sexually suggestive photos of children online along with text describing the sexual services they could, and would, provide. I found that interesting, because it raised the issue (in my mind, anyway) as to whether text can constitute child pornography.

I want to analyze that possibility, but I don’t want to use the possible-Detoit prosecution as the factual basis for our analysis. Instead, I want to focus on the ultimate issue: whether pure text could constitute child pornography. If it can, then someone who writes stories about children engaged in sexual activity (presumably with adults) could perhaps (we’ll come back to that later) be creating child pornography (a crime under state and federal law); if they posted it online or shared with others, they could be charged with disseminating child pornography.

The federal statute that defines the terms used in the child pornography and child exploitation statutes 18 U.S. Code § 2256. It defines “child pornography” as

any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where--(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

18 U.S. Code § 2256(8). It defines “visual depiction” as including “undeveloped film and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual image and data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format". 18 U.S. Code § 2256(5).

I can’t find a definition of “visual image” in the U.S. Code or in any of the state criminal statutes. It seems reasonable to me, though to assume the term means what it clearly denotes, i.e., a picture of some kind, a graphical versus textual depiction of a person or persons. That would make sense given the reasons why we began criminalizing child pornography. As I explained in an earlier post, the U.S. Supreme Court has said there are two reasons why we criminalize child pornography: Its creation involves the victimization of childre and it preserves their victimization essentially forever. As I also explained, the Supreme Court said both rationales only justify the criminalization of child pornography the creation of which involves victimizing real children.

The question then becomes, do the rationales also mean that in criminalizing child pornography we only criminalize graphical depictions of the victimization of children . . . or should it also extend to textual depictions of such victimization? That’s a good question, and I’m not sure can answer it. I’ve done some thinking and some research on the issue, and I’m going to share what I’ve come up with, and found, with you . . . maybe you have some good ideas on all this.

Let’s start with the only reported case I know of in which someone was prosecuted for possessing child pornography based on his possessing textual material. In Regina v. Sharpe, 2001 CarswellBC 82 (Supreme Court of Canada 2002), John Sharpe was charged with possession of child pornography after Canadian Customs officers seized “computer discs containing a text entitled `Sam Paloc's Boyabuse -- Flogging, Fun and Fortitude: A Collection of Kiddiekink Classics” from his possession. Regina v. Sharpe, supra.

Sharpe moved to dismiss the charge, arguing that it violated the right to freedom of expression guaranteed in § 2(b) of the Canadian Charter of Rights and Freedoms. Regina v. Sharpe, supra. The prosecution – the Crown – conceded that the statute under which he was charged -- § 163.1(4) of the Canadian Criminal Code – infringed that right. The issue then became

whether this limitation of freedom of expression is justifiable under § 1 of the Charter, given the harm possession of child pornography can cause to children. Mr. Sharpe accepts that harm to children justifies criminalizing possession of some forms of child pornography. The. . . question therefore is whether §163.1(4) of the Criminal Code goes too far and criminalizes possession of an unjustifiable range of material.

Regina v. Sharpe, supra. Section 1 of the Canadian Charter of Rights says the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” So the issue was whether criminalizing Sharpe’s possession of textual child pornography could be upheld under this provision.

The Canadian Supreme Court began its analysis of the issue by noting that the Criminal Code defined child pornography in terms of “visual representations.” Under the Criminal Code, a visual representation can constitute child pornography in three ways: (i) “By showing a person who is, or is depicted as, being under . . . 18 years and is engaged in, or is depicted as engaged in, explicit sexual activity; (ii) by ”having, as its dominant characteristic, the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of 18”; or (iii) by “advocating or counselling sexual activity with a person under the age of 18 years that would be an offence under the Criminal Code”. Regina v. Sharpe, supra. The court noted that “[w]ritten material can constitute child pornography in only the last of these ways”. Regina v. Sharpe, supra.

Its opinion is almost 100 pages long, so I can’t begin to go into the analysis in detail. I’ll just note that its primary concern was the fact that the statute criminalized

Self-created works of the imagination . . . intended solely for private use by the creator. The intensely private, expressive nature of these materials deeply implicates § 2(b) freedoms, engaging the values of self-fulfilment and self-actualization and engaging the inherent dignity of the individual. . . . Personal journals and writings. . . may well be of importance to self-fulfilmen. . . . The fact that many might not favour such forms of expression does not lessen the need to insist on strict justification for their prohibition.

Regina v. Sharpe, supra. The court therefore read an exception into § 163.1(4); it “protects the possession of expressive material created through the efforts of a single person and held by that person alone, exclusively for his or her own personal use.” Regina v. Sharpe, supra.

I am only aware of one somewhat similar case in the United States. In 2001, 22-year-old Brian Dalton of Columbus, Ohio pled guilty to a pandering obscenity charge that was based on fantasies – stories – he had written. According to news reports, the stories described the sexual molestation and torture of three children (10 and 11) who were kept in a case in a basement. Dalton pled guilty to one pandering obscenity count to avoid being brought to trial on a second charge; if he had been convicted on both charges, he would have faced 16 years in prison. As it was, he was sentenced to 10 years in prison.

In 2003, an Ohio Court of Appeals held that Dalton should be allowed to withdraw his guilty plea because he received ineffective assistance from his counsel. State v. Dalton, 793 N.E.2d 509 (Ohio App. 2003). The court held that Dalton would have had a good argument as to the unconstitutionality of the charges against him:

Because there is constitutional significance to the distinction between pornographic depictions of real children and similar depictions of fictional children, understanding the factual basis for the charges against appellant was particularly important. It is uncontested that the children depicted in appellant's journal and the repugnant acts described therein were creations of appellant's imagination. Therefore, this case raises a substantial question concerning the constitutionality of a statute prohibiting the creation and private possession of purely fictitious written depictions of fictional children. One court in Ohio has held that [Ohio statutes] cannot constitutionally criminalize the private possession of an obscene but possibly fictitious letter involving children. `Otherwise, the legislature would in effect be punishing an individual for his/her thoughts.’

Because appellant's trial counsel did not understand that both counts were based solely upon the purely fictional personal journal, she could not have adequately advised appellant of the potential constitutional defense.

State v. Dalton, supra. The Court of Appeals relied on the decision I discussed in my earlier post, in which the Supreme Court held that the First Amendment bars the criminalization of child pornography the creation of which does not involve victimizing a real child. Dalton’s attorney apparently thought the stories at least in part depicted the sexual molestation of an actual child. State v. Dalton, supra. The Ohio Supreme Court declined to review the Court of Appeals’ decision, so it’s final. I have no idea what happened to Dalton; I assume the prosecutor did not try to charge him with anything after he was released from prison.

I agree with the decisions of both courts . . . but I wonder what would (will) happen if someone is charged with possession of child pornography based on his or her having textual accounts describing the sexual molestation of real, identifiable children. The accounts themselves would be purely fictitious, i.e., they would not describe the actual molestation of the children; they would, instead, record the writer’s fantasies of engaging in such activity. Would stories like that, I wonder, be treated any differently from the ones in the Dalton and Sharpe cases?